Tuesday, April 29, 2008

Blackstone, ch 2 p 4

"Section 18. Part 4 of Chapter 2 of the Commentaries on the Laws of England, Book 1. - This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information, or to volunteer, please visit: librivox DOT org" "Recording by [your name]" "Commentaries on the Laws of England by William Blackstone (pronounced "Blexstun"), book 1. Chapter 2, Part 4"

V. The peculiar laws and customs of the house of commons
relate principally to the raising of taxes, and the elections of
members to serve in parliament.

First, with regard to taxes: it is the antient indisputable
privilege and right of the house of commons, that all grants of
subsidies or parliamentary aids do begin in their house, and are
first bestowed by them[t]; although their grants are not effectual
to all intents and purposes, until they have the assent of the other
two branches of the legislature. The general reason, given for
this exclusive privilege of the house of commons, is, that the
supplies are raised upon the body of the people, and therefore it
is proper that they alone should have the right of taxing themselves.
This reason would be unanswerable, if the commons taxed
none but themselves: but it is notorious, that a very large share
of property is in the possession of the house of lords; that this
property is equally taxable, and taxed, as the property of the
commons; and therefore the commons not being the sole persons
taxed, this cannot be the reason of their having the sole right of
raising and modelling the supply. The true reason, arising from
the spirit of our constitution, seems to be this. The lords being
a permanent hereditary body, created at pleasure by the king, are
supposed more liable to be influenced by the crown, and when
once influenced to continue so, than the commons, who are a
temporary elective body, freely nominated by the people. It would
therefore be extremely dangerous, to give them any power of
framing new taxes for the subject: it is sufficient, that they have
a power of rejecting, if they think the commons too lavish or
improvident in their grants. But so reasonably jealous are the
commons of this valuable privilege, that herein they will not
suffer the other house to exert any power but that of rejecting;
they will not permit the least alteration or amendment to be made
by the lords to the mode of taxing the people by a money bill;
under which appellation are included all bills, by which money
is directed to be raised upon the subject, for any purpose or in
any shape whatsoever; either for the exigencies of government,
and collected from the kingdom in general, as the land tax; or
for private benefit, and collected in any particular district; as by
turnpikes, parish rates, and the like. Yet sir Matthew Hale[u]
mentions one case, founded on the practice of parliament in the
reign of Henry VI[w], wherein he thinks the lords may alter a
money bill; and that is, if the commons grant a tax, as that of
tonnage and poundage, for four years; and the lords alter it to
a less time, as for two years; here, he says, the bill need not be
sent back to the commons for their concurrence, but may receive
the royal assent without farther ceremony; for the alteration of
the lords is consistent with the grant of the commons. But such
an experiment will hardly be repeated by the lords, under the present
improved idea of the privilege of the house of commons:
and, in any case where a money bill is remanded to the commons,
all amendments in the mode of taxation are sure to be rejected.

Next, with regard to the elections of knights, citizens, and
burgesses; we may observe that herein consists the exercise of the
democratical part of our constitution: for in a democracy there
can be no exercise of sovereignty but by suffrage, which is the
declaration of the people's will. In all democracies therefore it
is of the utmost importance to regulate by whom, and in what
manner, the suffrages are to be given. And the Athenians were
so justly jealous of this prerogative, that a stranger, who interfered
in the assemblies of the people, was punished by their laws
with death: because such a man was esteemed guilty of high
treason, by usurping those rights of sovereignty, to which he had
no title. In England, where the people do not debate in a collective
body but by representation, the exercise of this sovereignty
consists in the choice of representatives. The laws have therefore
very strictly guarded against usurpation or abuse of this power,
by many salutary provisions; which may be reduced to these three
points, 1. The qualifications of the electors. 2. The qualifications
of the elected. 3. The proceedings at elections.

1. As to the qualifications of the electors. The true reason
of requiring any qualification, with regard to property, in voters,
is to exclude such persons as are in so mean a situation that they
are esteemed to have no will of their own. If these persons had
votes, they would be tempted to dispose of them under some
undue influence or other. This would give a great, an artful, or
a wealthy man, a larger share in elections than is consistent with
general liberty. If it were probable that every man would give
his vote freely, and without influence of any kind, then, upon
the true theory and genuine principles of liberty, every member
of the community, however poor, should have a vote in electing
those delegates, to whose charge is committed the disposal of his
property, his liberty, and his life. But, since that can hardly be
expected in persons of indigent fortunes, or such as are under the
immediate dominion of others, all popular states have been obliged
to establish certain qualifications; whereby some, who are
suspected to have no will of their own, are excluded from voting,
in order to set other individuals, whose wills may be supposed
independent, more thoroughly upon a level with each other.

And this constitution of suffrages is framed upon a wiser
principle than either of the methods of voting, by centuries, or
by tribes, among the Romans. In the method by centuries, instituted
by Servius Tullius, it was principally property, and not
numbers that turned the scale: in the method by tribes, gradually
introduced by the tribunes of the people, numbers only
were regarded and property entirely overlooked. Hence the laws
passed by the former method had usually too great a tendency to
aggrandize the patricians or rich nobles; and those by the latter
had too much of a levelling principle. Our constitution steers
between the two extremes. Only such as are entirely excluded,
as can have no will of their own: there is hardly a free agent to
be found, but what is entitled to a vote in some place or other
in the kingdom. Nor is comparative wealth, or property, entirely
disregarded in elections; for though the richest man has only one
vote at one place, yet if his property be at all diffused, he has
probably a right to vote at more places than one, and therefore
has many representatives. This is the spirit of our constitution:
not that I assert it is in fact quite so perfect as I have here endeavoured
to describe it; for, if any alteration might be wished or
suggested in the present frame of parliaments, it should be in
favour of a more complete representation of the people.

But to return to our qualifications; and first those of electors
for knights of the shire. 1. By statute 8 Hen. VI. c. 7. and
10 Hen. VI. c. 2. The knights of the shires shall be chosen of
people dwelling in the same counties; whereof every man shall
have freehold to the value of forty shillings by the year within
the county; which by subsequent statutes is to be clear of all
charges and deductions, except parliamentary and parochial taxes.
The knights of shires are the representatives of the landholders,
or landed interest, of the kingdom: their electors must therefore
have estates in lands or tenements, within the county represented:
these estates must be freehold, that is, for term of life
at least; because beneficial leases for long terms of years were
not in use at the making of these statutes, and copyholders were
then little better than villeins, absolutely dependent upon their
lord: this freehold must be of forty shillings annual value; because
that sum would then, with proper industry, furnish all the
necessaries of life, and render the freeholder, if he pleased, an
independent man. For bishop Fleetwood, in his chronicon pretiosum
written about sixty years since, has fully proved forty shillings
in the reign of Henry VI to have been equal to twelve
pounds per annum in the reign of queen Anne; and, as the value
of money is very considerably lowered since the bishop wrote, I
think we may fairly conclude, from this and other circumstances,
that what was equivalent to twelve pounds in his days is equivalent
to twenty at present. The other less important qualifications
of the electors for counties in England and Wales may be collected
from the statutes cited in the margin[x]; which direct, 2. That no
person under twenty one years of age shall be capable of voting
for any member. This extends to all sorts of members, as well
for boroughs as counties; as does also the next, viz. 3. That no
person convicted of perjury, or subornation of perjury, shall be
capable of voting in any election. 4. That no person shall vote in
right of any freehold, granted to him fraudulently to qualify him
to vote. Fraudulent grants are such as contain an agreement to
reconvey, or to defeat the estate granted; which agreements are
made void, and the estate is absolutely vested in the person to
whom it is so granted. And, to guard the better against such
frauds, it is farther provided, 5. That every voter shall have
been in the actual possession, or receipt of the profits, of his freehold
to his own use for twelve calendar months before; except
it came to him by descent, marriage, marriage settlement, will,
or promotion to a benefice or office. 6. That no person shall
vote in respect of an annuity or rentcharge, unless registered with
the clerk of the peace twelve calendar months before. 7. That
in mortgaged or trust-estates, the person in possession, under the
abovementioned restrictions, shall have the vote. 8. That only
one person shall be admitted to vote for any one house or tenement,
to prevent the splitting of freeholds. 9. That no estate
shall qualify a voter, unless the estate has been assessed to some
land tax aid, at least twelve months before the election. 10. That
no tenant by copy of court roll shall be permitted to vote as a
freeholder. Thus much for the electors in counties.

As for the electors of citizens and burgesses, these are supposed
to be the mercantile part or trading interest of this kingdom.
But as trade is of a fluctuating nature, and seldom long fixed in
a place, it was formerly left to the crown to summon, pro re nata,
the most flourishing towns to send representatives to parliament.
So that as towns encreased in trade, and grew populous, they
were admitted to a share in the legislature. But the misfortune
is, that the deserted boroughs continued to be summoned, as well
as those to whom their trade and inhabitants were transferred;
except a few which petitioned to be eased of the expence, then
usual, of maintaining their members: four shillings a day being
allowed for a knight of the shire, and two shillings for a citizen or
burgess; which was the rate of wages established in the reign
of Edward III[y]. Hence the members for boroughs now bear
above a quadruple proportion to those for counties, and the number
of parliament men is increased since Fortescue's time, in the
reign of Henry the sixth, from 300 to upwards of 500, exclusive
of those for Scotland. The universities were in general not
empowered to send burgesses to parliament; though once, in
28 Edw. I. when a parliament was summoned to consider of the
king's right to Scotland, there were issued writs, which required
the university of Oxford to send up four or five, and that of Cambridge
two or three, of their most discreet and learned lawyers
for that purpose[z]. But it was king James the first, who indulged
them with the permanent privilege to send constantly two of
their own body; to serve for those students who, though useful
members of the community, were neither concerned in the landed
nor the trading interest; and to protect in the legislature the
rights of the republic of letters. The right of election in boroughs
is various, depending intirely on the several charters, customs,
and constitutions of the respective places, which has occasioned
infinite disputes; though now by statute 2 Geo. II. c. 24. the right
of voting for the future shall be allowed according to the last determination
of the house of commons concerning it. And by
statute 3 Geo. III. c. 15. no freeman of any city or borough (other
than such as claim by birth, marriage, or servitude) shall be intitled
to vote therein unless he hath been admitted to his freedom
twelve calendar months before.

2. Our second point is the qualification of persons to be
elected members of the house of commons. This depends upon
the law and custom of parliaments[a] and the statutes referred to
in the margin[b]. And from these it appears, 1. That they must
not be aliens born, or minors. 2. That they must not be any of
the twelve judges, because they sit in the lords' house; nor of
the clergy, for they sit in the convocation; nor persons attainted
of treason or felony, for they are unfit to sit any where[c]. 3. That
sheriffs of counties, and mayors and bailiffs of boroughs, are not
eligible in their respective jurisdictions, as being returning officers[d];
but that sheriffs of one county are eligible to be knights
of another[e]. 4. That, in strictness, all members ought to be
inhabitants of the places for which they are chosen: but this is
intirely disregarded. 5. That no persons concerned in the management
of any duties or taxes created since 1692, except the
commissioners of the treasury, nor any of the officers following,
(viz. commissioners of prizes, transports, sick and wounded, wine
licences, navy, and victualling; secretaries or receivers of prizes;
comptrollers of the army accounts; agents for regiments; governors
of plantations and their deputies; officers of Minorca or
Gibraltar; officers of the excise and customs; clerks or deputies
in the several offices of the treasury, exchequer, navy, victualling,
admiralty, pay of the army or navy, secretaries of state,
salt, stamps, appeals, wine licences, hackney coaches, hawkers
and pedlars) nor any persons that hold any new office under the
crown created since 1705, are capable of being elected members.
6. That no person having a pension under the crown during pleasure,
or for any term of years, is capable of being elected. 7. That
if any member accepts an office under the crown, except an officer
in the army or navy accepting a new commission, his seat is void;
but such member is capable of being re-elected. 8. That all
knights of the shire shall be actual knights, or such notable
esquires and gentlemen, as have estates sufficient to be knights,
and by no means of the degree of yeomen. This is reduced to
a still greater certainty, by ordaining, 9. That every knight of a
shire shall have a clear estate of freehold or copyhold to the value
of six hundred pounds per annum, and every citizen and
burgess to the value of three hundred pounds; except the eldest
sons of peers, and of persons qualified to be knights of shires, and
except the members for the two universities: which somewhat
ballances[**typo for balances?] the ascendant which the boroughs have gained over the
counties, by obliging the trading interest to make choice of
landed men: and of this qualification the member must make
oath, and give in the particulars in writing, at the time of his
taking his seat. But, subject to these restrictions and disqualifications,
every subject of the realm is eligible of common right.
It was therefore an unconstitutional prohibition, which was inserted
in the king's writs, for the parliament holden at Coventry,
6 Hen. IV, that no apprentice or other man of the law should
be elected a knight of the shire therein[f]: in return for which,
our law books and historians[g] have branded this parliament with
the name of parliamentum indoctum, or the lack-learning parliament;
and sir Edward Coke observes with some spleen[h], that
there was never a good law made thereat.

3. The third point regarding elections, is the method of
proceeding therein. This is also regulated by the law of
parliament, and the several statutes referred to in the margin[i]; all which I shall endeavour to blend together, and extract
out of them a summary account of the method of proceeding to

As soon as the parliament is summoned, the lord chancellor,
(or if a vacancy happens during parliament, the speaker, by order
of the house) sends his warrant to the clerk of the crown in
chancery; who thereupon issues out writs to the sheriff of every
county, for the election of all the members to serve for that
county, and every city and borough therein. Within three days
after the receipt of this writ, the sheriff is to send his precept,
under his seal, to the proper returning officers of the cities and
boroughs, commanding them to elect their members; and the
said returning officers are to proceed to election within eight days
from the receipt of the precept, giving four days notice of the
same; and to return the persons chosen, together with the precept,
to the sheriff.

But elections of knights of the shire must be proceeded to
by the sheriffs themselves in person, at the next county court that
shall happen after the delivery of the writ. The county court is
a court held every month or oftener by the sheriff, intended to
try little causes not exceeding the value of forty shillings, in what
part of the county he pleases to appoint for that purpose: but
for the election of knights of the shire, it must be held at the
most usual place. If the county court falls upon the day of delivering
the writ, or within six days after, the sheriff may adjourn
the court and election to some other convenient time, not longer
than sixteen days, nor shorter than ten; but he cannot alter the
place, without the consent of all the candidates; and in all such
cases ten days public notice must be given of the time and place
of the election.

And, as it is essential to the very being of parliament that
elections should be absolutely free, therefore all undue influences
upon the electors are illegal, and strongly prohibited. For
Mr Locke[k] ranks it among those breaches of trust in the executive
magistrate, which according to his notions amount to a dissolution
of the government, "if he employs the force, treasure,
and offices of the society to corrupt the representatives, or openly
to preingage the electors, and prescribe what manner of persons
shall be chosen. For thus to regulate candidates and electors,
and new model the ways of election, what is it,[** "] says he, [** "]but
to cut up the government by the roots, and poison the very
fountain of public security?" As soon therefore as the time
and place of election, either in counties or boroughs, are fixed,
all soldiers quartered in the place are to remove, at least one day
before the election, to the distance of two miles or more; and
not return till one day after the poll is ended. Riots likewise have
been frequently determined to make an election void. By vote
also of the house of commons, to whom alone belongs the power
of determining contested elections, no lord of parliament, or lord
lieutenant of a county, hath any right to interfere in the election
of commoners; and, by statute, the lord warden of the cinque
ports shall not recommend any members there. If any officer of
the excise, customs, stamps, or certain other branches of the revenue,
presumes to intermeddle in elections, by persuading any
voter or dissuading him, he forfeits 100l, and is disabled to hold
any office.

Thus are the electors of one branch of the legislature secured
from any undue influence from either of the other two, and
from all external violence and compulsion. But the greatest danger
is that in which themselves co-operate, by the infamous practice
of bribery and corruption. To prevent which it is enacted
that no candidate shall, after the date (usually called the teste) of
the writs, or after the vacancy, give any money or entertainment
to his electors, or promise to give any, either to particular persons,
or to the place in general, in order to his being elected;
on pain of being incapable to serve for that place in parliament.
And if any money, gift, office, employment, or reward be given
or promised to be given to any voter, at any time, in order to influence
him to give or withhold his vote, both he that takes and
he that offers such bribe forfeits 500l, and is for ever disabled
from voting and holding any office in any corporation; unless,
before conviction, he will discover some other offender of the
same kind, and then he is indemnified for his own offence[l]. The
first instance that occurs of election bribery, was so early as
13 Eliz. when one Thomas Longe (being a simple man and of
small capacity to serve in parliament) acknowleged that he had
given the returning officer and others of the borough of Westbury
four pounds to be returned member, and was for that premium
elected. But for this offence the borough was amerced,
the member was removed, and the officer fined and imprisoned[m].
But, as this practice hath since taken much deeper and more universal
root, it hath occasioned the making of these wholesome
statutes; to complete the efficacy of which, there is nothing wanting
but resolution and integrity to put them in strict execution.

Undue influence being thus (I wish the depravity of mankind
would permit me to say, effectually) guarded against, the
election is to be proceeded to on the day appointed; the sheriff
or other returning officer first taking an oath against bribery, and
for the due execution of his office. The candidates likewise, if
required, must swear to their qualification; and the electors in
counties to theirs; and the electors both in counties and boroughs
are also compellable to take the oath of abjuration and that against
bribery and corruption. And it might not be amiss, if the members
elected were bound to take the latter oath, as well as the
former; which in all probability would be much more effectual,
than administring it only to the electors.

The election being closed, the returning officer in boroughs
returns his precept to the sheriff, with the persons elected by the
majority: and the sheriff returns the whole, together with the
writ for the county and the knights elected thereupon, to the
clerk of the crown in chancery; before the day of meeting, if it
be a new parliament, or within fourteen days after the election,
if it be an occasional vacancy; and this under penalty of 500l.
If the sheriff does not return such knights only as are duly elected,
he forfeits, by the old statutes of Henry VI, 100l; and the returning
officer in boroughs for a like false return 40l; and they
are besides liable to an action, in which double damages shall be
recovered, by the later statutes of king William: and any person
bribing the returning officer shall alio forfeit 300l. But the
members returned by him are the sitting members, until the
house of commons, upon petition, shall adjudge the return to
be false and illegal. And this abstract of the proceedings at elections
of knights, citizens, and burgesses, concludes our enquiries
into the laws and customs more peculiarly relative to the house
of commons.

"End of Section 18"